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The Season of Bad Laws, Part 2: Criminal Copyright Infringement, Drug War Style

The Department of Justice is pushing for legislation that would expand the scope of, and stiffen the penalties for, criminal copyright infringement. The legislation has not yet been introduced, but the relevant subcommittee of the House Judiciary Committee has quietly circulated a draft bill based on the DoJ wish list. (A similar bill was circulated in November 2005, along with a "section-by-section" analysis apparently prepared by DoJ to explain their requests. The new bill goes farther than the previous version.)

The DoJ proposal is an outrage.

Keep in mind that criminal copyright infringement is no longer limited to situations involving commercial piracy. Thanks to laws like the No Electronic Theft (NET) Act and the Family Entertainment and Copyright Act (FECA), the feds can now bring criminal charges against people for simply uploading a single "pre-release" song (as two Ryan Adams fans discovered last month when they were brought up on federal charges for uploading tracks from pre-release promotional CDs).

Most of the changes sought by DoJ fall into two broad categories: (1) making it easier to convict people of criminal copyright infringement by eliminating the inconvenient necessity of proving that actual infringement took place; and (2) increasing the financial and penal penalties when someone is convicted.

This guarantees one result: more innocent people will be convicted. After all, if you're wrongly accused, but you know the feds don't have to prove their case and you're facing serious jail time, you're more likely to accept a plea bargain.

In fact, DoJ will have an easier time convicting you of criminal charges than civil litigants will have suing you for money. This is exactly backwards. Before they throw people in jail for copyright infringement (especially where the infringement does not involve a commercial motive), the feds should have to prove their case, just like copyright owners in civil cases. They should have to prove, among other things, that infringement took place, that it took place within the applicable statute of limitations, and that the work was properly registered.

Is it too much to ask that DoJ actually do its homework and prove its case before it imprisons people and seizes their assets for uploading a Ryan Adams song?

The draft bill includes the following changes to copyright's criminal provisions:

Makes attempted copyright infringement a criminal offense. This is unprecedented in American copyright law.

Makes conspiracy to commit copyright infringement a criminal offense. Aiding and abetting is already prohibited under existing law, as is contributory infringement, so this appears designed to enable prosecutions where no actual infringement ever took place.

Empowers law enforcement with the same criminal and civil forfeiture powers used in drug prosecutions.

Stiffens penalties in the "anti-bootlegging" statute that prohibits recording of live concerts, despite the fact that the law has been declared unconstitutional by a New York federal court (the government has appealed).

For criminal prosecutions, eliminates the requirement that a work be registered before a case can be commenced.

Dramatically increases the maximum prison sentences applicable to most criminal copyright provisions, including the anti-camcording laws enacted just last year.

In addition to the criminal provisions, the DoJ proposal also makes the following general changes, which would be available in both civil (think RIAA, MPAA) and criminal cases:

Expands existing ex parte seizure remedies available to copyright owners to include seizure of "records documenting the manufacture, sale, or receipt of [infringing] items." You can expect the MPAA and RIAA to argue that this includes server logs, email, customer lists, and similar records.

Prohibits exports of goods that are infringing or would have been infringing if the U.S. Copyright Act had applied. Current law already prohibits imports, as well as domestic reproductions, distributions, and performances. So targeting "exports" really addresses exports of works that would not otherwise be infringing under U.S. law. Another example of expanding a copyright owner's rights without any justification.

Defines "traffic" under the DMCA to mean "to transport, transfer, or otherwise dispose of, to another, or to make, import, export, obtain control of, or possess, with intent to so transport, transfer, or otherwise dispose of." By explicitly adding "possession" to the definition of "traffic," this expands the DMCA (when experience tells us the DMCA needs to be narrowed).